Class notes on insider trading regulation

Transcription

4/7/2015
Insider trading
What’s legal? What’s illegal?
How is it regulated? How should it be regulated?
Court Rejects Bharara's Plea to Reconsider Trading Ruling
- New York Times, April 5, 2015
On Friday [April 3], the United States Court of Appeals for the Second Circuit
[refused] … to reconsider a ruling in December that sharply narrowed the
definition of insider trading.
That ruling, issued by a three judge panel of the court, tossed out the convictions of
two hedge fund traders and threatened to dissolve other signature convictions and
pleas secured by the office of Mr. Bharara, the United States attorney for
Manhattan.
Copyright 2015, Joel Hasbrouck, All rights reserved
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Outline
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“Legal” insider trading
“Illegal” insider trading
 Legal framework and principles
 Economic arguments for and against.
Readings
 Bainbridge, Stephen M. (2000). Insider trading: an overview.
SSRN. http://ssrn.com/abstract=132529
 Pages 1-(top of) p. 5. Morrison-Foerster, LLP. (2015). 2014
Insider Trading Annual Review. Morrison-Foerster, LLP.
http://www.mofo.com/~/media/Files/ClientAlert/2015/02/150211InsiderTradingAnnualRevie
w.pdf
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Legal “insider trading”
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The classic “insider” is a company officer, director or owner of 10% or
more of the shares.
These people must report their trades to the SEC within two days.
 These reports are made public on EDGAR.
The trades can’t rely on material non-public information.
They can’t sell short.
Any profits realized from buying and selling within a six-month period
are considered short-swing profits.
 The corporation or any security holder can sue to recover these
profits.
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Illegal insider trading
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Trading on inside information in the US is subject to civil action (SEC) and
criminal charges (Department of Justice)
No US law explicitly defines and prohibits “insider trading”
The prohibitions and prosecutions rest on interpretations of Rule 10b-5 that
have been advanced by the SEC and affirmed in court rulings.
 Insider trading is considered a “manipulative and deceptive” device under
the rule.
Some of the key legal principles that have emerged in this fashion include
 The rule of “disclose or abstain”.
 Duty of confidentiality.
 Misappropriation of information.
 Tipper-tippee liability.
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Disclose or abstain
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Someone in possession of material non-public information must either disclose the
information to their trading counterparty or abstain from trading.
Consistent with the fairness principle of equal access to information.
SEC v. Texas Gulf Sulfur
 In 1964, Texas Gulf Sulfur, a mining company, determined that a field in Ontario was
especially valuable. The information was made public on April 15, but officers and
employees (insiders) started buying days (months) before the announcement.
 The SEC brought a complaint and obtained a judgment against the defendants.
Disclosure is often impossible, so abstaining is the only option.
How broad is this? Does it apply to any informational advantage, however obtained?
The disclose or abstain principle was restrained by imposing a requirement based on a
duty of confidentiality.
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Fiduciary duty of confidentiality
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A “fiduciary duty” is a legal obligation to act on behalf of someone else.
A duty to disclose only exists if the information was obtained through a
relationship of trust.
Chiarella v. U.S. (1980)
 Chiarella worked for a financial printer. In printing documents for
corporate acquirers, he determined the identities of target firms. He
purchased the stock prior to the announcement.
 Chiarella (an outsider) was convicted, but the Supreme Court
reversed the conviction on the grounds that he had no fiduciary
relationships to the target companies or their stockholders.
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Misappropriation of information
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Even though you might not have a fiduciary relationship
with the stockholders, you might have obtained the
information through some other fiduciary relationship.
Some early attempts to apply this theory failed, but the
courts later adopted this principle.
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An early case: Carpenter v. US (1987)
 R. Foster Winans was a reporter for the Wall Street
Journal.
 His “Heard on the Street” column mentioned stocks, and
these mentions often moved prices.
 He tipped off a stock broker in advance of publication.
 The SEC alleged that he misappropriated the information
in violation of a duty owed to his employer.
 The Supreme Court rejected this theory.
Did Chiarella misappropriate information from his
employer?
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A defining case: US v. O’Hagan (1997)
 In 1988, Grand Metropolitan planned to take over
Pillsbury.
 Grand Met retained the law firm of Dorsey & Whitney.
 James O’Hagan was a partner in the firm. He didn’t work
on the takeover, but he did learn of it, and bought
Pillsbury shares.
 Convicted on the grounds that he misappropriated
information from his employer (Dorsey & Whitney)
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§240.10b5-1 clarifies the SEC’s definition of insider trading.
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The “manipulative and deceptive devices” … include, among other
things, the purchase or sale of a security of any issuer, on the basis of
material nonpublic information about that security or issuer, in
breach of a duty of trust or confidence that is owed directly,
indirectly, or derivatively, to the issuer of that security or the
shareholders of that issuer, or to any other person who is the source
of the material nonpublic information.
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When does a duty of trust or confidence arise?
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Established business relationship
 Lawyer-client (O’Hagan)
 Investment banker-client
Other professional relationships?
Family relationship?
Professional friendships?
Personal friendships?
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The case of the stock-buying psychiatrist (currentpsychiatry.com)
Laurie
(secretary at
Datacom)
The case of the acquisitive
acquaintances
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Richard
(husband)
Laurie works for Datacom and
learns that Datacom will be making
a takeover bid for Mandala.
Are all of the “downstream” tippee’s
subject to prosecution?
Jordan (friend)
Phillip (cousin)
Robert
(coworker # 1)
David (cousin)
Josie (friend)
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Jon (friend)
Coworker #2
George
(friend)
Coworker #3
Ray (friend)
Daniel (friend)
Clarence
(brother)
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The case of the well-situated seller.
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Mona holds stock in IMC where her friend, Stephen is CEO.
Stephen discovers bad news and sells a large block of IMC.
Mona and Stephen use the same stockbroker, Phillip.
Philip tells Mona that Stephen has sold.
Mona quickly sells her IMC stock.
IMC announces the bad news and its stock falls.
Insider trading?
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The case of the rueful room mate
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Amy is an analyst for Cubic Investments (a hedge fund)
Amy is working on a plan for Cubic to short-sell stock in
GreenGrow.
Bianca (Amy’s room mate) learns about the plan. Amy tells
Bianca that the information is confidential and that Bianca
shouldn’t trade on it.
Bianca tells her friend Caitlin about the plan. Caitlin buys
put options on GreenGrow.
Insider trading?
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What does the tipper (source of the information) receive?
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If the information is material (economically valuable), and if
the tipper is knowingly violating a duty of confidentiality
and taking a risk of discovery and prosecution, we’d expect
that the tipper be receiving payment or other consideration.
Is some payment (or other benefit) a necessary condition for
alleging insider trading?
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Dirks v. SEC (1983)
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Background
 Raymond Dirks was an investment analyst who covered insurance companies.
 Ronald Secrist was a former executive at Equity Funding of America.
 Secrist told Dirks that Equity’s accounting was fraudulent.
 Dirks investigated; some Equity employees corroborated Secrist’s statements.
 Dirks told his clients (who sold). Equity’s stock price dropped. Trading was halted.
The firm went into receivership.
The SEC censured Dirks for abetting (assisting, facilitating) trading on material
nonpublic information (in violation of “disclose or abstain”).
The US Supreme Court reversed the censure on the grounds that neither Secrist nor the
corroborating employees received any monetary or personal benefit.
 Simply passing along the information did not violate a duty of confidentiality.
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SEC v. Obus (2012)
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In 2012, a decision by the Court of Appeals for the Second Circuit in SEC v.
Obus expanded tippee/tipper liability – at least in SEC civil enforcement
actions – to encompass cases where neither the tipper nor the tippee has
actual knowledge that the inside information was disclosed in breach of a
duty of confidentiality.
Rather, a tipper’s liability could flow from recklessly disregarding the nature
of the confidential or nonpublic information, and a tippee’s liability could
arise in cases where the sophisticated investor tippee should have known
that the information was likely disclosed in violation of a duty of
confidentiality.
(Morrison and Foerster, 2014 Insider Trading Review)
Obus seemed consistent with a very broad interpretation of insider trading.
 But then came Chiasson and Newman …
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United States vs. Anthony
Chiasson and Todd Newman
Charged January, 2012
 “… as sophisticated traders,
they must have known that
information was disclosed by
insiders in breach of a
fiduciary duty, and not for
any legitimate corporate
purpose.”
Convicted December 2012
Conviction overturned
December, 2014
SEC appeal denied April, 2015
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Rob Ray (Investor Relations, Dell) passes
along advance earnings information.
Sandy Goyal
Jesse Tortora
Todd
Newman
Spyradon
Adonakis
Anthony
Chiasson
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From the decision overturning the conviction:
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In order to sustain a conviction for insider trading, the Government must
prove beyond a reasonable doubt that the tippee knew that an insider
disclosed confidential information and that he did so in exchange for a
personal benefit.
Moreover, we hold that the evidence was insufficient to sustain a guilty
verdict against Newman and Chiasson for two reasons.
 First, the Government's evidence of any personal benefit received by the
alleged insiders was insufficient to establish the tipper liability from
which defendants' purported tippee liability would derive.
 Second, even assuming that the scant evidence offered on the issue of
personal benefit was sufficient, which we conclude it was not, the
Government presented no evidence that Newman and Chiasson knew that
they were trading on information obtained from insiders in violation of
those insiders' fiduciary duties.
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Insider trading regulation: the arguments (Bainbridge)
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Henry Manne (1966) Insider trading and the stock market
Insider trading benefits society because
 It makes markets more efficient (more private
information gets incorporated into the security price)
 Insider trading is an efficient way to compensate
managers.
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Efficiency
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We want managers to produce information.
If this information can’t be publicized, the stock price won’t be
accurate.
BUT
Insiders probably can’t buy/sell enough stock to really move the
price all the way to its “correct” value.
The market has to infer the insider’s trading activity from
watching the order flow.
 The adjustment process is rough and prone to errors.
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Compensation
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What better way to compensate managers than by letting them
profit from the information that they produce?
BUT
Isn’t this information the property of all the shareholders?
If the information is negative, the manager can profit by selling
short.
 Does this give the manager an incentive for poor
performance?
Why should insider trading result in the correct level of
managerial compensation?
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Arguments in favor of regulation
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Fairness
 The insider didn’t produce the information – they just
happened to be in the right place at the right time.
Economic arguments (Bainbridge)
 Insider trading harms investors and hurts investor
confidence.
 Insider trading harms the issuer.
 Insider trading involves theft of information.
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Insider trading harms investors and hurts investor confidence
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When an insider buys from me in the basis of private
information worth $5, I’ve lost $5.
 Bainbridge: but you’d have lost from the sale to anyone;
all purchasers have a gain (not just the insider)
 Inside information leads to trading costs for all investors.
Bainbridge: many countries with weak insider trading
prohibitions still seem to have active liquid stock markets.
 Might these markets be even better with regulation.
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Insider trading hurts the issuer
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Insiders will delay the public release of information until
they’ve been able to trade.
 Bainbridge: trading can be accomplished very quickly.
 Not for all stocks.
Interference with corporate plans.
 An insider buying a takeover target might drive the price up
for the acquirer.
 An insider might disclose information early to realize his
trading profit.
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Insider trading is theft.
 Information is property: the gains from using that
information belong to the producer of that information
(the corporation).
 Bainbridge: the value of information is not reduced when
more than one person uses it.
 In financial markets, it can.
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Are (reported) insider trades profitable?
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Insiders must report their trades to the SEC within two
days. Are their trades profitable?
 After they bought, did the stock go up? After they sold, did
it go down?
Most studies have found that insider trades are slightly
profitable.
 Insiders exploit a small information advantage.
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SEC rules provide insiders with a safe harbor.
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… [A] person's purchase or sale is not “on the basis of” material
nonpublic information if the person making the purchase or sale
demonstrates that:
(A) Before becoming aware of the information, the person had:
 (1) Entered into a binding contract to purchase or sell the
security,
 (2) Instructed another person to purchase or sell the security
for the instructing person's account, or
 (3) Adopted a written plan for trading securities;
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10b5-1 Plans
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Written agreements that pre-commit an executive to buy or sell
shares.
 Usually specify a regular schedule or purchases or sales.
Widely used by executives to divest shares over time.
But the plan doesn’t have to filed with the SEC, doesn’t have to
be publicly available, and can be changed at will.
This allows an insider to sell a “larger than planned” amount to
avoid holding the stock prior to the announcement of bad news.
There is evidence that directors are doing just that.
 Pulliam, Susan, & Barry, Rob. (2013, April 25, 2013). Directors take shelter in trading plans,
Wall St. Journal.
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Decoding inside information1
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One study separates routine trades and opportunistic trades.
“[A] routine trader [is] an insider who placed a trade in the
same calendar month for at least a certain number of years in
the past. … [An] opportunistic traders [is] everyone else.”
“A portfolio strategy that focuses solely on ‘opportunistic’
traders yields value-weighted abnormal returns of 82 basis
points per month, while abnormal returns associated with
routine traders are essentially zero.
(1) Cohen, Lauren, Malloy, Christopher, & Pomorski, Lukasz.
(2012). Decoding Inside Information. The Journal of finance,
67(3), 1009-1043.
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Track stock performance in
the days following routine
and opportunistic trades, and
report the average
 This corresponds to
forming an equal-weighted
portfolio of the stocks.
Opportunistic trades are
much more profitable
 … and are more likely to
trigger an SEC
investigation.
Months
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Class notes on insider trading regulation

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